9911796707
TMI Blog2017 (3) TMI 1386X X X X Extracts X X X X X X X X Extracts X X X X ..... 125, 126, 127, 128 of 2015 - - - Dated:- 14-2-2017 - Sudhir Agarwal and Ravindra Nath Mishra-II, JJ. For The Appellant : Alok Mathur For The Respondent : Abhinav Trivedi (Delivered by Hon ble Sudhir Agarwal, J.) 1. Instant appeals have been preferred by Income Tax Department (herein after referred to Revenue ) under Section 260A of Income Tax Act, 1961 (herein after referred to as Act, 1961 ) arising from a common judgment and order dated 29.08.2014 passed by Income Tax Appellate Tribunal, Allahabad Bench, Allahabad (herein after referred to as Tribunal ) relating to different Assessment Years (herein after referred to as A.Y. ). Details of appeals are given in the following chart: Sl. No. I.T.A. Number Assessment Year I.T.A.T. Number 1 125 of 2015 2001-02 360/ALLD/2014 2 126 of 2015 2003-04 362/ALLD/2014 3 127 of 2015 2004-05 363/ALLD/2014 4 128 of 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Belu Sinha 5. These assessments were subjected to appeals and ultimately Tribunal, by a consolidated order dated 24.04.2009, decided various appeals relating to aforesaid A.Ys., set-aside assessments observing that Assessing Authority cannot reopen question of registration of institution from year to year as it solely falls within jurisdiction of C.I.T. Tribunal directed Assessing Authority to make assessments, afresh. 6. While fresh assessments were pending, C.I.T. cancelled registration under Section 12AA (3) vide order dated 28.12.2010. Said order, however, was set-aside by Tribunal vide order dated 21.06.2011 and it restored registration dated 16.08.1975 granted under Section 12A. Consequent thereto, C.I.T. passed an order under Section 254/12AA (3) on 27.12.2011 giving effect to the order of Tribunal and making registration under Section 12A, effective retrospectively. 7. Fresh assessments were made under Section 143 (3) Act, 1961, in respect to A.Ys. 2001-2002 to 2005-2006, vide order dated 28.12.2010. Assessed income under order dated 28.12.2010 for various A.Ys. is as under: Particulars A.Y. 2001-02 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s vide order dated 21.06.2011, Assessing Authority on its own gave effect to consequences of order dated 21.06.2011 passed by Tribunal and demand created under order dated 28.12.2010 was modified in view of entitlement of exemption arising in favour of Assessee. 11. Assessed income, as aforesaid, was revised by order dated 01.12.2011 after granting relief with respect to accumulation allowable under Section 11 and capital expenditure as under: Particulars A.Y. 2001-02 A.Y. 2002-03 A.Y. 2003-04 A.Y.2004-05 A.Y. 2005-06 Assessed income Particulars A.Y. 2001-02 A.Y. 2002-03 A.Y. 2003-04 A.Y. 2004-05 A.Y. 2005-06 Assessed income 1,15,86,230/- 2,05,20,740/- 5,15,81,970/- 8,39,39,820/- 12,06,04,570/- Total Relief Allowed on the basis of extension of benefits of registration u/s 12A 1,15,86,230/- 2,05,20,740/- 4,75,83,670/- 8,39,39,820/- 12,06,04,570/- Net taxable income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 11 of the IT Act. Certificate of the auditor was also considered and at PB-177 and 179 (internal page of the order 23 to 25), the ld. CIT(A) examined the issue in the light of registration restored to the assessee u/s 12A and examined the expenses with application of income u/s 11 of the IT Act. The ld. CIT(A) also considered those expenses which stand the test of genuineness and application of funds for charitable and religious purpose in India. Each disallowance was separately considered and the appeal of the assessee for the assessment year 2003-04 was partly allowed (copy of order placed in PB-153). Thus on the date of passing of the impugned order u/s 263 on dated 25.03.2014, the issue of applicability of provisions of section 11 to 13 on account of registration granted u/s 12AA have not only been examined by the AO but also by the ld. CIT(A) and appropriate relief has been granted to the assessee. 16. These findings have not been shown by learned counsel for Revenue to be incorrect or contrary to record. If that be so, its result is that assessment order dated 28.12.2010 stood merged with C.I.T.(A)'s order dated 21.11.2013. Order dated 01.12.2011 was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pective of the fact as to whether the Appellate Court affirms, modifies or reverses the decree passed by the trial court. (emphasis added) 23. In Gangadhara Palo Vs. The Revenue Divisional Officer Another [2011 (4) SCC 602) , the Court said : According to the doctrine of merger, the judgment of the lower court merges into the judgment of the higher court . Hence, if some reasons, however meagre, are given by this Court while dismissing the special leave petition, then by the doctrine of merger, the judgment of the High Court merges into the judgment of this Court and after merger there is no judgment of the High Court. Hence, obviously, there can be no review of a judgment which does not even exist. (emphasis added) 24. However, in taxing statutes like Act, 1961, the Legislature has not thought it fit to apply general 'Doctrine of Merger', but 'Doctrine of 'Partial Merger' has been adopted. Once the issue of merger is governed by statutory provisions, then, obviously, it is the statute which shall prevail over general doctrine of 'merger'. Herein general 'doctrine of partial merger' and to the extent it would apply for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aspati Co. Ltd. [(2005) 277 ITR 559 (All)] , Court held that in respect of items which have not been considered in appeal, power of Commissioner under Section 263(1) shall be extended to that extent. 21. Tribunal has also looked into the said aspect of the matter and in para 14.1 and 18, has said as under: 14.1. Section 263(1)(c) of the IT Act provides that where any order referred to in this sub-section and passed by the AO had been the subject matter of any appeal, the powers of CIT under this sub-section shall extend to such matters as had not been considered and decided in such appeal. Since the issue of registration u/s 12AA has been decided in favour of the assessee and a valid registration u/s 12A exists in favour of assessee, therefore, the assessee would be entitled for deduction of exemption u/s 11 and 12 of the IT Act. The AO originally passed the order on 27.03.2006 granting relief u/s 11 to 13 of the IT Act and after cancellation of registration, the AO again passed the order on 28.12.2010 denying benefit of section 11 and 12 to the assessee on cancellation of registration. The said order remained in appeal before the ld. CIT(A) who vide order dated 21.11.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
